By: JEREMY PERLIN,API STAFF COUNSEL

Over the past five years, an ever-increasing number of lawyers have taken advantage of emerging technologies to be more productive and increase office efficiency. One of the many available tools that is contributing to increased productivity is the explosion of electronic mail as a means of communication with both internal staff members and clients who may be thousands of miles away. With the increasing use of e-mail to foster the attorney-client relationship, lawyers must take into account the privacy of such communications and that their duties are under rules of professional ethics.

For a long time. many, in the legal profession relied on a common assumption. the source of which is unknown, that sending e-mail is akin to sending postcards - the information is available to any one who chooses to read it and, therefore. not expected to be private. To date, nearly one-half of the state bar associations have issued ethics opinions concerning lawyers= duties when communicating with clients via e-mail. Until recently, however, the American Bar Association had not addressed the issue. It did so through Formal Opinion No. 99-413, recently issued by the Standing Committee on Ethics and Professional Responsibility.

The 10 member committee concluded that "a lawyer may transmit information relating to the representation of a client by unencrypted e-mail" without violating the Model Rules of Professional Conduct. 'Me opinion adds that unencrypted e-mail "affords a reasonable expectation of privacy from a technological and legal standpoint."

While many legal professionals are thankful that the ABA finally offered guidance in this area, some fear that some lawyers will only focus on the fact that encryption of e-mail is not an absolute requirement. "I'm afraid that the opinion will be interpreted simply as saying that attorneys don't have to worry about the security of e-mail. This is not what the ABA opinion says at all," says legal technology consultant Jerry Lawson of Burke, VA.

Since there is no case law that is directly on point, many feel that the ABA opinion will be significant to judges faced with attorney-client privilege decisions in this area. According to San Francisco attorney Peter Krakaur, who maintains a web site devoted to legal ethics (www.legalethics.com). "The opinion will be a secondary resource that a court may follow." He hopes that with the issuance of Formal Opinion No. 99-413 judges and other legal professionals will reconsider their view of e-mail as a postcard. In this regard, attorney Charles F. Luce, Jr. offers a new metaphor - through an article found at www.mgovg.com/ethics/netethic.htm - which compares e-mail to a whispered conversation in Grand Central Station at rush hour."

As one might expect, demand for the ABA ethics opinion has been great. While the Committee on Ethics and Professional Responsibility usually charges a fee for copies of its ethics opinions, it has decided to make Formal Opinion No. 99-413 available for free at its web site (www.abanet.org/cpr/fo99-413.html). For those who do not have access to the Internet, copies of the opinion are available by calling the American Prepaid Legal Services Institute (API) at 312/988-5751.